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Another Fine Meth

Defendant Tran was stopped by customs officers while crossing the border from Canada, ostensibly to go to a casino in New York. Customs agents found several bags of pills hidden in the interior roof lining of his rented car, but Tran repeatedly denied knowing that the drugs were there.

There were more than 40,000 pills, weighing more than 10 kilograms. A chemical analysis of 29 of the pills revealed that they contained ecstasy (in concentrations ranging from 15 to 28%) and d-methamphetamine (in concentrations ranging from 5.6 to 6.9%). At trial, a DEA chemist testified that these tests accurately reflected the amount and percentage of the drugs in all of the pills.

Tran testified, and explained that he did not know that there were drugs in the car. He was convicted, and sentenced to 235 months’ imprisonment.

The Jury Charge on Knowledge

In its charge on knowledge, the district court largely followed Sand, except that it instructed that, where a defendant is the “sole occupant of an apartment,” it would be “reasonable to conclude that” he “knew about the items in [that] apartment.” It went on to explain that a defendant’s “behavior” such as “[n]ervousness in the presence of drugs[,] or flight” from the scene “may also indicate knowledge.”

On appeal, Tran challenged these instructions, claiming – inaccurately – that the court charged that the jury could reasonably infer knowledge from sole occupancy of a vehicle. The appellate court pointed out Tran’s error, then refused to review the actual instruction given, since Tran did not challenge it. In a footnote the court chided both his counsel for making “material misrepresentation[s] of the record” (on this point and another), and the government, for failing to point out the errors.

Tran did, however, challenge the language about nervousness in the presence of drugs, but the circuit affirmed. “Even where drugs are hidden and therefore not immediately visible to the occupant or others, the possibility of discovery may cause an individual with knowledge of the drugs to respond with nervousness to a law enforcement officer’s presence.” The court noted that there might be a “stronger claim of error” where a court instructs that “nervousness alone” is a sufficient basis for finding knowledge, but the charge as a whole here did not convey this message. It gave examples of indicators of knowledge, including nervousness, and said that they were “neither exhaustive nor . . . conclusive.”

Sufficiency of the Evidence

The court also held that the evidence of knowledge was legally sufficient. While agreeing that “sole occupancy of a vehicle cannot alone suffice to prove knowledge of contraband found hidden in the vehicle,” here there was more. The government introduced evidence of “nervousness,” in the agents’ testimony about Tran’s conduct when stopped, and of “suspicious circumstances,” such as Tran’s traveling without directions to a place he had never been, and his doing so without toiletries or a change of clothes. Finally, by testifying, Tran forfeited his right to have the sufficiency of the evidence determined on the government’s case alone.

Tran also challenged the sufficiency of the evidence that the pills contained 500 grams or more of methamphetamine, claiming that the chemist’s sample was too small. The court disagreed, noting that “sampling is a permissible method of proof,” and that the chemist had opined that all of the pills contained the same substances in approximately the same proportions.